- The Washington Times - Thursday, November 30, 2000

Out-of-control courts

Four years ago, the Manhattan-based conservative journal First Things published a symposium on judicial activism, New York Post columnist Rod Dreher notes.
"The essays focused on whether an activist judiciary had gone so far in legislating from the bench that conscientious citizens 'can no longer give moral assent to the existing regime.' …
"These articles were too extreme for some prominent neoconservatives, sparking a vicious row among rightist intellectuals," Mr. Dreher said.
"… That was then. Now, thanks in large part to legislative liberties taken by the hyperactive Florida Supreme Court, America finds its legal president-elect at risk of being usurped by a sore loser with slick lawyers and a state Supreme Court packed tight with liberal activists.
"Because of this, ordinary people who never paid much attention to the subject of judicial activism find themselves suddenly and violently shaken out of their torpor and, in many cases, talking about the illegitimacy of a Gore government."
Mr. Dreher added: "The shock of Florida, and the radical thoughts it has engendered among ordinary folks … could provide the impetus to the kind of reform the First Things writers desired. A 30-year anti-democratic tide may be about to turn."
The columnist quoted Weekly Standard editor William Kristol: "The key, not just for Bush, but for everyone in their own way, is to turn the outrage of the moment into a sustained political attempt to put courts back in their proper role."

Diminishing returns

"In fact, Mr. Bush would have been the clear and unmistakable winner if not for the remarkable effort of the NAACP to get out Florida's black vote," Wall Street Journal "Business World" columnist Holman W. Jenkins Jr. writes.
"How this was achieved is one for the annals of electioneering. The organization targeted 2.8 million black households in key states before the election, reaching out by mail, phone and home visit an average of 12 times per household. The New Republic's Ryan Lizza gives an eye-opening account of these 'knock and drag' operations," Mr. Jenkins said.
"In Florida, exit polls showed that blacks accounted for 15 percent of those casting ballots, though they account for just 13 percent of the voting-age population. The difference, assuming 90 percent of them voted Democratic, was worth 100,000 votes for Mr. Gore. This is a tribute to the NAACP and its undisclosed donors, many of whom are major U.S. corporations. It's also very smart of the Democrats. There is no comparable group of Republicans that can be targeted with 90 percent accuracy based on so simple a criterion as skin color. When you can leverage that kind of information advantage, not using it would be a crime.
"At some point, though, voter outreach hits the point of diminishing returns. In some Miami precincts where 90 percent of the vote went for Mr. Gore, more than 10 percent of presidential ballots were thrown out as uncountable. Even the 27,000 spoiled ballots in Republican Duval County are believed to have been disproportionately filled out by Jacksonville residents who were targets of race-based voter mobilization tactics.
"Mr. Gore seems to think his plethora of bad ballots is proof that he was drawing on a deeper well of support than Mr. Bush. The truth may be the opposite: His campaign did a better job of exhausting its supply of potential supporters and still came up short of a convincing victory. If anything, Mr. Bush might actually be more popular if you assume unmotivated Democrats normally have the same propensity to vote as unmotivated Republicans."

Rattled Democrats

"There are Republicans taking to the streets in Miami, in Fort Lauderdale, in West Palm Beach, in Tallahassee, in Austin, in Washington, and who knows where else. In each place, they have been met by pro-Gore demonstrators, but there has been no comparison between the size and the passion of the two sides," the American Spectator's Byron York writes.
"At this weekend's protests in Washington, for example, anti-Gore demonstrators greatly outnumbered pro-Gore forces at all times even though The Washington Post pictured only the small Democratic contingent on its front page Sunday morning (some of the networks paid them even less attention). If anything, such coverage made the Republicans even more intense," Mr. York said.
"All this has left Gore supporters a little, well, rattled. 'Where are the Democratic fire-breathers?' asks Democratic fire-breather David Talbot, editor of Salon. 'With their omnipresent "Sore Loserman" placards and their full-throated charges of election stealing,' Talbot writes, 'the Republicans have seized the momentum.' …
"The new Republican activism has the Democratic vice-presidential candidate a bit worried, too. 'These demonstrations are a disservice to our democracy,' Joseph Lieberman said after the Miami protest. "This is a time to honor the rule of law, not surrender to the rule of the mob.' Democrats accuse Republican protesters of 'intimidating' the canvassing board into stopping the recount. Indeed, Gore lawyer David Boies said on Sunday that the 'mob action' allegation will be a central argument in Gore's contest of the results in Miami-Dade… .
"The worries of Talbot and Lieberman and Boies suggest that there's something unusual something unprecedented going on in this presidential contest. Whatever the final result of the legal action, the battle for Florida will go down as the first large-scale political battle in which Republicans played the street theater game and won. From now on, Jesse Jackson can no longer be certain that he will have the field to himself. One could argue about whether or not that is a good thing. But Al Gore is undoubtedly hearing the message from the streets outside his house: No justice, no peace."

Time for oversight

"When Republicans come back to town, they ought to exercise some oversight over the Clinton administration's refusal to do its part to facilitate President-elect George W. Bush's transition," John J. Miller and Ramesh Ponnuru write at nationalreview.com.
"Sure, some Florida court could give Gore the upper hand again. Or a recount could be ordered in Tennessee. Or lightning could strike both Bush and Dick Cheney. At this point, though, Bush ought to be considered at least the presumptive president-elect. The tactical case for making Clinton's foot-dragging the issue is 1) that it looks petty and 2) that Gore looks less presidential any time Clinton's in the spotlight."

Republican concedes

Republican Dick Zimmer conceded his New Jersey U.S. House race to Democratic Rep. Rush Holt yesterday, 22 days after the election and 12 days after Mr. Holt declared victory.

Mr. Zimmer's concession came after a recount that started Monday increased his opponent's lead to 755 votes out of 291,527 votes cast for the two men, the Associated Press reported.

"I had hoped the recount would narrow the margin, but in fact the ball bounced in the other direction," Mr. Zimmer said.

Mr. Holt savored the end of the three-week dispute, though he had celebrated victory at a staff party early last week.

"It was a long Election Night, too, that has gone on for a couple of weeks now," he said. "I thanked him for conducting the recount in a way that didn't turn this into a circus. I knew this must be difficult for him."

Mr. Zimmer said he was conceding to avoid a legal war and suggested the Democratic presidential candidate do the same.

"I do not intend to go down the path that Al Gore has taken," he said.

Some of the disputed votes included absentee ballots in Middlesex County that election workers had corrected in pencil because the voters had filled them out with pens. The counting machines cannot read ink.

Mr. Zimmer was a three-term congressman before leaving his House seat to run for Senate in 1996, an election he lost to Democrat Robert G. Torricelli.

Land of lawyers

On NBC's "Tonight" show, Jay Leno says: "It's not looking good. According to the latest poll, 60 percent of Americans want Al Gore to concede the election. The other 40 percent are lawyers working for Al Gore."

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